Global Capital Properties Ltd v Ku-ring-gai Council - [2010] NSWLEC 1105 - NSWLEC 2010 case summary — Zoe

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Global Capital Properties Ltd v Ku-ring-gai Council

[2010] NSWLEC 1105

Land and Environment Court (NSW)|2010-02-20

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2010-02-20

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

Background and proposal 3 On 17 December 2009, the Court determined that the amended development application was "other than minor" and triggered the mandatory cost provision in section 97B of the Act (Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415). 4 The amended application seeks approval to demolish the existing residential dwellings on the site to construct a residential flat building with two part 5 part 6 storey buildings (Buildings A and B) comprising 32 units and parking for 66 cars. The site and locality 5 The site is located on the southern side of Buckingham Road near its junction with the Pacific Highway. It consists of three allotments (lots 1, 3 and 4 in DP414101) and is irregular in shape with a total site area of 3792.2sqm. It has a frontage to Buckingham Road of 28.03m and a rear boundary of 64.31m. The site has a depth of 164.72m along its irregular eastern boundary and 91.86m along its western boundary. 6 The site slopes steeply from Buckingham Road to its rear boundary and there are a number of trees. 6A Buckingham Road and 8 Buckingham Road are each developed with a detached houses. 6A Buckingham Road is accessed by a steep driveway along the eastern side of the site. 7 There is a drainage easement across the south eastern corner of the site. 8 The site adjoins "Southdean", a heritage item to the west (10 Buckingham Road) and a detached dwelling on a battle axe allotment (8A Buckingham Road) accesses off a driveway which adjoins the western boundary of the site. A two storey house (6 Buckingham Road) is to the east which has approval to be demolished as part of the redevelopment of 6-8 Buckingham Road for a residential flat Building. A residential flat building is located to the south east at 564-568 Pacific Highway. The Killara Golf Course adjoins the rear of the site to the south, which also has bowling greens. Opposite the site is a dwelling which is a heritage item (11 Buckingham Street). A residential flat building is under construction on the corner of Buckingham Road and the Pacific Highway. Planning controls 9 The site is zoned Residential 2(d3) under the KPSO. The development is permissible with consent. 10 The site adjoins properties in different residential zones; Southdean is zoned 2(b), the Killara Golf Course is zoned 2(e) and 8A Buckingham Road is zoned 2(c2). 11 Ku-ring-gai Multi Unit Housing Development Control Plan No 55 (DCP 55), SEPP1 and State Environmental Planning Policy No 65 - Design quality of residential flat development (SEPP 65) are also relevant. The evidence 12 The hearing commenced on site where the Court heard evidence from residents whose main concerns related to the increase in traffic likely to be generated by the development and its impact on the existing roads including the availability of parking in Buckingham Road. The owner of Southdean was concerned about the impact that the proposal would have on the setting of his house when viewed from the street and from the house to the south. He was particularly concerned about the height and bulk of the proposal, which would be visible from the rear and verandah of Southdean and the amount of landscaping to screen the development. The owner of 8A Buckingham Road also raised issues of the height and bulk of Building B when viewed from her property. She considered the building should be set back further from the rear boundary to align with the setback of other dwellings. She also raised concerns about privacy impacts and the loss of sunlight to her living areas. 13 The representatives of the Golf course were concerned about the impact of overshadowing from the proposed canopy trees on the bowling green. They considered the extent of overshadowing would adversely impact on the growth of turf and result in the bowling green closest to the pavilion being unable to be used. 14 The Court heard expert evidence from:

[5]

(c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping. 17 Mr Gosling prepared a SEPP 1 objection which concluded that compliance with cl25I(3) was unnecessary and unreasonable in the circumstances of the case for the following reasons: · The site cannot be amalgamated with another site given the approval of a residential flat building at 2-8 Buckingham Street and the heritage item at 10 Buckingham Street. · The 2m setback of the basement provides sufficient deep soil planting. · The site width does not comply with the standard at the frontage of 8 Buckingham Street but the width of the site at 6A Buckingham Street exceeds the 30m control. · The development provides a minimum of 12m setbacks between habitable rooms of the proposed residential flat building at 2-6 Buckingham St. · The development provides adequate setbacks to the adjoining heritage building and does not adversely impact on its significance. 18 In Mr Gosling's opinion the non compliance with the standard is also reasonable given that the basement is the minimum width possible due to the turning circles, level changes across the site and parking numbers. 19 Mr Gosling stated that if plants along the side setback of Building A can be sustained at a height of up to 15m then the objective of the control is satisfied. 20 In Ms Munn's opinion the proposal does not provide adequate deep soil landscaping or side setbacks and therefore does not achieve the objective of the control. Further the size of the building is too large for the site width and results in a building of excessive bulk and scale. In particular, Ms Munn was concerned about the proximity of the basement level of Building A which is setback 2m from the east and west boundary and protrudes up to 5.06m above natural ground level at its south west corner. The basement does not comply with the 6m setback above and below ground in Part 4.3 control C-1(a) and C3 of DCP 55 and does not provide sufficient width for landscaping that would effectively screen the basement or the levels above from Southdean and 8A Buckingham Street. In her opinion this indicated that the proposal did not meet the objective of the control. 21 Ms Munn did not agree that it had been demonstrated that the site could not be amalgamated with 2-8 Buckingham Street nor that the basement width could not be reduced. She referred to previous applications for the site, which had provided a 6m setback but had been refused on other grounds.

[17]

(1) Heads of consideration for consent authority Before granting consent to development for the purpose of multi-unit housing on land to which this Part applies, the consent authority must take into account the following: (a) the desirability to provide a high proportion of deep soil landscape to the site area, (b) the impact of any overshadowing, and any loss of privacy and loss of outlook, likely to be caused by the proposed development, (c) the desirability to achieve an appropriate separation between buildings and site boundaries and landscaped corridors along rear fence lines, (d) the environmental features that are characteristic of the zone in which the site is situated by requiring sufficient space on-site for effective landscaping, (e) the desirability of adequate landscaping so that the built form does not dominate the landscape, (f) how the principles of water cycle management can be applied to limit the impacts of runoff and stormwater flows off site. 33 It would appear that the cumulative purpose of the controls in cl25I, including cl25I(3), is to ensure that sites are of sufficient size and dimension to accommodate residential flat buildings of a particular size to achieve the relevant heads of consideration in cl25I(1). These are similar in intent to the objective of the residential zone in cl 25D(2)(c) referred to by the experts as being the underlying purpose of the control. In relation to the frontage control the relevant heads of consideration relate to providing a site with sufficient width for deep soil landscape area (a), amenity impacts (b), separation between buildings and side boundaries(c), characteristics of the zone and effective landscaping (d), and adequate landscaping so the built form does not dominate the landscape (e). 34 The key disagreement between the experts is that the setback of the basement does not provide adequate width for deep soil landscaping that will screen Building A. The experts agree that the setback of the building above the basement is adequate but disagree that the landscaping will achieve sufficient height to screen these levels. Both planners agree that if adequate landscaping is provided to screen the building then the objective of the standard is met. They both defer to the landscape evidence to determine whether this will be achieved.

[31]

The proposed planting of Eucalyptus saligna (Sydney Blue Gum) and Eucalyptus paniculate (Grey Ironbark) as shown on the eastern boundary on the landscape plan would not be viable. The proposed planting will achieve screening to the first floor of the building. The overall effect will not be consistent with the objectives which require provision of tall tree planting to side setbacks of Building A. Regular maintenance of the canopies will be required to provide clearance to the elevated walkway. 55 The landscape plan was amended to include the same range of species within the eastern side setback as the western side setback. Ms Beavan maintained her concern about the impact of the walkway, which would require lopping of the canopy trees and restrict their growth and screening. Findings 56 PartIIIA of the KPSO provides a number of objectives in relation to landscaping which include the objectives for residential zones in cl 25D(2): (c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping. (e) to provide built upon area controls to protect the tree canopy of Ku-ring-gai, and to ensure particularly the provision of viable deep soil landscaping in order to maintain and improve the tree canopy in a sustainable way, so that tree canopy will be in scale with the built form, 57 The heads of consideration in cl 25I: (e) the desirability of adequate landscaping so that the built form does not dominate the landscape, 58 The only numerical control for side setback controls is cl25L, which provides: 25L Zone interface (1) The objective of this clause is to provide a transition in the scale of buildings between certain zones. (2) The third and fourth storey of any building on land within Zone No 2 (d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2 (d3). (3) Landscaping required to screen development from any adjoining property must be provided on the site and must not rely on landscaping on the adjoining property.

[38]

C-2 Landscape design is to ensure that the built form blends with the natural landscape. This is to be achieved by: i) selecting species with an appropriate range of height and foliage density, and ii) allowing for adequate deep soil planting zones for established screen planting where required. C-3 Driveways shall not be located in side setbacks as these areas are to consist of deep soil landscaping 64 In summary, the purpose of these controls is to ensure that multi unit development reflects and enhances the existing landscaped and treed character. The controls also seek to minimise the visual impacts relating to height and bulk of the development by providing effective landscaping in scale with the buildings and so that the built form does not dominate the landscape. 65 The key dispute between the parties relates to the effectiveness of the landscape setting along the side boundaries, principally the western boundary, which adjoins a heritage item that is zoned 2(b). While we accept that the landscaping is not required to totally screen the development from view to be effective, however, it should provide trees that will be of a similar scale to the building. This would require some trees to achieve a height, which is relative to the height of the building. We note that the C-8 in Part 4.1 of DCP55 requires the site to provide a minimum number (13) of tall trees capable of reaching a minimum height of 13m. The proposal exceeds this requirement and no issue is raised with the size of trees proposed in the front and rear setback areas and adjoining Building B. However, we accept Ms Beavan's evidence that the trees proposed along the western side boundary adjoining Building A are unlikely to reach their full height or to be in scale with the building. The 2m setback of the basement, particularly where this extends up to 5.06m above ground level, places constraints on the growth potential of the trees proposed in the landscape plan such that effective landscaping will not be achieved and the building will dominate the landscape.

[48]

76 Mr Gunns also provided an option which provided 6m setbacks but which involved a significant redesign of the basement and in the opinion of the applicant's experts raise significant amenity impact for the residents of 10 Buckingham Street as it proposed an open drive way for part of its length. Finding 77 Without examining the merits of any of the alternate options for the garage we accept Mr Staunton's submission that the options demonstrate that greater side setbacks can be achieved which would provide increased separation and a larger width of deep soil for effective landscaping to screen the building and reduce the impact of its height and bulk, particularly when viewed from Southdean. 78 The proposal does not meet the numerical control or the objectives for setbacks in Part 4.3 in DCP 55. We do not accept that the constraints of the site or of the basement design justify the non compliance or that this could not be addressed by an alternate design or a common driveway with 2-6 Buckingham Street. 79 Mr Hemmings submitted that the basement design was based on certain assumptions, including council requirements for garbage collection. The application should therefore not be refused on this basis but rather redesigned. We do not consider a redesign appropriate given that leave has already been granted for amended plans and the extent and uncertainty of the further changes that may be required. Heritage 80 The main area of disagreement between Mr Israel and Mr Dighnam was whether the proposal would dominate Southdean and its setting and thereby reduce its heritage significance. 81 Mr Dighnam was principally concerned about the relationship of Southdean with Building A, which he considered should not be further forward of Southdean as required by C-1(iii) in Part 3.5 of DCP 55. This would increase its visibility from Buckingham Road and re-establish the historic relationship of Southdean and its entrance driveway with the Pacific Highway. Mr Dighnam acknowledged that Southdean is currently obscured from view by the existing house at 8 Buckingham Road and existing landscaping. Building A will be setback further than the existing house but Mr Dighnam did not accept that this would improve the setting of Southdean and its visibility from Buckingham Road, particularly as a single storey dwelling was being replaced with a much larger building. He agreed that the landscaping along the boundary in the front setback area should have a raised canopy to screen the upper levels of the building and increase the visibility of Southdean. 82 Mr Dighnam also considered that the façade treatment of Building A could be improved by the use of colours and materials to provide more detail and improve its relationship with Southdean. He acknowledged that a building on the site would necessarily be contemporary and different in its form. Further, he accepted that the changes to the façade (exhibit F) proposed by Ms Jelicic were an improvement but were not adequate to address his concerns about the building's relationship with Southdean. He preferred the façade changes proposed by Mr Israel. 83 In Mr Israel's opinion, it is inevitable that a residential flat building will be different in style and character to a single dwelling and that there will be "conflict". He considered the new building should provide a transition between the proposed residential flat building at 2-6 Buckingham Road and Southdean and in his opinion this was achieved. He initially had concerns about the materials and colours of the front façade but accepted that these had been adequately addressed by the proposed amendments even though they were different to what he suggested. 84 Mr Israel considered that the front setback of Building A was adequate. In his opinion the relationship of Southdean and its entrance driveway to the Pacific Highway were already lost and the demolition of the existing house would increase its visibility from Buckingham Road. In his opinion a further setback would provide a relatively minimal increase in the visibility of Southdean from the public realm. He considered the objectives of the front setback control in DCP 55 were met, particularly if the landscaping permitted views of the house. 85 Both Mr Dighnam and Mr Israel agreed that upper levels of the building and the above ground basement car park should be screened to reduce the impact of the proposal on the setting of Southdean. Although they held different opinions on the extent to which the basement car park and upper levels of Building A and B would encroach into the view corridor of the living rooms and main verandah of Southdean and its historic relationship with the golf course, particularly the club house and the first tee.

[53]

O-1 New medium density development that respects the heritage significance of the adjoining or nearby heritage items. O-2 New medium density that does not visually dominate a heritage item. O-3 New medium density that does not reduce the views from or to an item from the public realm. O-4 New medium density that does not impact on the garden setting of an item, particularly in terms of overshadowing the garden or causing physical impacts on important trees. C-1 Medium density development adjacent to a heritage item shall: i. Setback the first and second storeys at least 10 metres from the adjacent heritage building. ii. Setback the third and fourth storeys at least 15 metres from the adjacent heritage building. iii. Be setback from the front boundary so that it is not closer than the adjoining heritage building. C-2 Screen planting on all boundaries with an item to achieve a height of at least 4 metres. C-3 New development shall respect the aesthetic character of the item and not dominate it. 90 A Heritage Impact Statement (HIS) and Supplementary HIS were prepared by Mr Israel. Mr Dighnam did not consider that these had adequately addressed the impact of the proposal on the heritage significance of Southdean. His key concern being that the proposal will dominate Southdean, particularly as a result of its setback to Buckingham Road. 91 Building A is setback 10m from Buckingham Road and Southdean, at its closest point, has an 18.5m setback. The proposal therefore does not comply with C-1iii of Part 3.5. However, we accept Mr Israel's evidence that the proposal will meet the objectives of this control. 92 The orientation and setback of Southdean is unusual in the street. Southdean is setback at its closest point about 18.5m and at an angle to Buckingham Road with its main elevation orientated to the Pacific Highway from which its original driveway provided access. This historical association has largely been lost by subsequent subdivision of the area and the dwelling at 8 Buckingham Road and its landscaping now block views of Southdean from the public realm. The proposal will not reduce the views that are currently available to the house and a further setback will not recreate the historic relationship that has been lost. The setback of the proposal therefore meets objective O-3 of Part 3.5 and is acceptable. 93 We note Mr Dighnam's concerns about the materials and colours of Building A but we accept Mr Israel's evidence that the building is a residential flat building which is of considerably different height and scale to Southdean and there is an inherent conflict between the two buildings. Changes to the materials and colours may improve their relationship but, of themselves, would not resolve this conflict. 94 The setbacks of the upper levels of Building A comply with the setback requirements in C-1 i and ii of Part 3.5 and the height of the landscaping will achieve at least 4m as required by C-2 of Part 3.5. Despite this, we are not satisfied that the proposal will not visually dominate the heritage item, particularly when viewed from the living areas and verandah of Southdean. Historically these areas were orientated towards the golf course, particularly its club house and first tee. As with the association with the Pacific Highway, the relationship with the golf course has largely been lost and cannot be regained. However, the angle of Southdean and its orientation to the Pacific Highway and the Golf Course result in its outlook being towards the proposal. It is not the usual side boundary relationship that would result from a more regular subdivision. 95 For the reasons we have discussed above in relation to the side setbacks and the basement we have found that the proposed landscaping will not effectively screen the development such that it will not adversely affect the heritage significance of the item and its setting. The proposal therefore does not meet the aims and objectives in cl 25C (1) and (2) or Part 3.5 of DCP 55 to such an extent that it would warrant approval.